81_FR_42410 81 FR 42285 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Implementation of the Shark Conservation Act of 2010

81 FR 42285 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Implementation of the Shark Conservation Act of 2010

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 81, Issue 125 (June 29, 2016)

Page Range42285-42289
FR Document2016-15413

This final action updates agency regulations consistent with provisions of the Shark Conservation Act of 2010 (SCA) and prohibits 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. This action amends existing regulations and makes them consistent with the SCA.

Federal Register, Volume 81 Issue 125 (Wednesday, June 29, 2016)
[Federal Register Volume 81, Number 125 (Wednesday, June 29, 2016)]
[Rules and Regulations]
[Pages 42285-42289]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-15413]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 111014628-6513-02]
RIN 0648-BB54


Magnuson-Stevens Fishery Conservation and Management Act 
Provisions; Implementation of the Shark Conservation Act of 2010

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

ACTION: Final rule.

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SUMMARY: This final action updates agency regulations consistent with 
provisions of the Shark Conservation Act of 2010 (SCA) and prohibits 
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. This action amends existing 
regulations and makes them consistent with the SCA.

DATES: Effective July 29, 2016.

ADDRESSES: Copies of the Environmental Assessment (EA)/Regulatory 
Impact Review (RIR)/Final Regulatory Flexibility Analysis (FRFA) 
prepared for this action can be obtained from: Erin Wilkinson, National 
Marine Fisheries Service, 1315 East-West Highway, Room 13437, Silver 
Spring MD 20910. An electronic copy of the EA/RIR/FRFA document as well 
as copies of public comments received can be viewed at the Federal e-
rulemaking portal: http://www.regulations.gov/ (Docket ID: NOAA-NMFS-
2012-0092).

FOR FURTHER INFORMATION CONTACT: Erin Wilkinson by phone at 301-427-
8561, or by email: erin.wilkinson@noaa.gov or sca.rulemaking@noaa.gov.

SUPPLEMENTARY INFORMATION:

I. Overview of the Shark Conservation Act

    Background information and an overview of the Shark Conservation 
Act can be found in the preamble of the proposed rule published on May 
2, 2013 (78 FR 25685). Copies are available from NMFS (see ADDRESSES), 
or can be viewed electronically at the Federal E-Rulemaking portal for 
this action: http://www.regulations.gov.

II. Major Components of the Final Action

    Retaining a shark fin while discarding the shark carcass (shark 
finning) has been prohibited in the United States since the 2000 Shark 
Finning Prohibition Act. The 2010 SCA included provisions that amended 
the Magnuson-Stevens Fishery Conservation and Management Act (MSA) 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 action amends NMFS' regulations consistent with these 
provisions of the SCA. Specifically, the rule amends 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. In 
the preamble to the proposed rule, NMFS noted that it interprets the 
prohibitions in subpart N as applying to sharks, not skates and rays, 
and solicited public comment on whether clarification was needed in the 
regulatory text on this issue. See 78 FR 25685, 25686 (May 2, 2013). 
NMFS received only one public comment on this point, which was 
supportive of this interpretation, and NMFS thus affirms in this final 
rule that the prohibitions do not apply to skates and rays.
    This final rule also updates subpart N to be consistent with 
section 103(b) of the SCA regarding an exception for individuals 
engaged in commercial fishing for smooth dogfish. Interpretation of 
that exception was addressed in a rule finalized in November 2015, for 
Amendment 9 to the 2006 Consolidated Atlantic Highly Migratory Species 
Fishery Management Plan (November 24, 2015; 80 FR 73128). That final 
rule, among other things, allows for the at-sea removal of smooth 
dogfish fins provided that fishing occurs within 50 nautical miles of 
shore along the Atlantic Coast from Maine through the east coast of 
Florida; smooth dogfish fin weight does not exceed 12 percent of the 
carcass weight on board; smooth dogfish make up at least 25 percent of 
the total retained catch, by weight; and the fisherman/vessel holds 
both federal and state permits appropriate for the retention of smooth 
dogfish.
    This final rule also combines the existing Sec. Sec.  600.1203 and 
600.1204 into one section. The text throughout 50 CFR part 600, subpart 
N, is amended to make it consistent with the provisions of the SCA.
     The MSA authorizes the Secretary to regulate fisheries seaward of 
the inner boundary of the U.S. exclusive economic zone (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, as noted in the proposed rule, 
the SCA provisions apply to any person subject to the jurisdiction of 
the United States, including persons on board U.S. and foreign vessels, 
engaging in activities prohibited under the statute with respect to 
sharks harvested seaward of the inner boundary of the EEZ. See 78 FR 
25685, 25686 (May 2, 2013). 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 also 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 High Seas Driftnet Fishing 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 High Seas 
Driftnet Fishing Moratorium

[[Page 42286]]

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 amended the High Seas Driftnet Fishing 
Moratorium Protection Act regulations, to make them consistent with 
these provisions of the SCA, on January 16, 2013 (78 FR 3338).

III. Relationship of Regulations With Current State Laws

    The MSA provides for Federal management of fisheries in the U.S. 
exclusive economic zone (16 U.S.C. 1812(a)). In Sec.  600.1201(d) of 
the proposed rule, NMFS noted that State and territorial statutes that 
address shark fins are preempted if they are inconsistent with the MSA 
as amended by the Shark Conservation Act of 2010, regulations under 
this part, and applicable federal fishery management plans and 
regulations. This text did not state that specific state laws were in 
fact preempted, and the proposed regulations themselves would not have 
preempted any state or territorial laws. NMFS included this text 
because a number of states and territories had enacted their own laws 
regarding shark fins, and NMFS was concerned that some of those laws, 
which differ from state to state, might restrict the possession of 
shark fins in a way that could conflict with the broader goals of the 
MSA as amended by the SCA, and might therefore be preempted by the MSA 
as amended by the SCA.
    NMFS engaged in extensive discussions with states and territories 
that have existing shark fin laws. During these discussions, the states 
and territories all expressed concern over language in the proposed 
rule regarding the potential for preemption of state shark fin laws 
that conflict with the SCA. In those discussions, NMFS sought 
additional information about the nature and details of the state laws 
and fisheries, economic factors, and the ability of federally-permitted 
shark fishermen to dispose of legally-landed shark fins. Following the 
discussions described above and further exchanges of information 
between NMFS and the relevant states and territories, NMFS has 
determined that the current shark fin laws for these states and 
territories are consistent with, and therefore are not preempted by, 
the MSA as amended by the SCA: California, Delaware, Hawaii, Maryland, 
Massachusetts, New York, Oregon, Washington, the Commonwealth of the 
Northern Mariana Islands, and Guam. The bases for these conclusions 
were that the shark fin laws in those states and territories would have 
minimal impacts on federally licensed and permitted shark harvesters, 
because the laws did not prohibit federally licensed and permitted 
fishermen from landing a legally-caught shark with fins naturally 
attached or selling the non-fin parts of the shark, and, based on the 
scale and nature of the shark fisheries in those states and 
territories, the laws would have minimal impacts on federal fishermen. 
Copies of letters exchanged between NMFS and applicable states and 
territories documenting those conclusions may be found on the Office of 
Sustainable Fisheries Web site: http://www.nmfs.noaa.gov/sfa/laws_policies/sca/index.html. Copies of letters may also be requested 
by contacting NMFS (See ADDRESSES). Should the facts presented to NMFS 
change significantly, NMFS may re-engage in discussions with the 
applicable state or territory. NMFS is currently in discussions with 
one other territory that passed a shark fin law, American Samoa. NMFS 
encourages any state or territory considering shark fin legislation to 
reach out to NMFS to discuss such legislation, and NMFS will continue 
to take appropriate steps, including engaging with states as necessary, 
to support federally licensed and permitted shark harvesters.

IV. Response to Comments

    NMFS received over 180,000 public comments on the proposed rule. 
These comments came from non-governmental organizations, members of 
Congress, Fishery Management Councils and Commissions, state 
governments, commercial and recreational fishermen, and other 
interested members of the public. Many of the comment letters were 
similar or raised similar issues. NMFS reviewed and considered all 
comments during the development of this final rule. Due to the large 
volume of comments received and the overlapping nature of many of the 
comments, we have not responded to each individually, but instead have 
responded to the major topics addressed in the comments. Many comments 
expressed support for the rule as written and have not been summarized 
below.
    Topic 1: Several fishermen from California commented that they 
support the SCA, but that the proposed rule ignored the details of 
their shark fishery. They indicated that due to the large size of many 
of the sharks (mainly mako and thresher sharks) they harvest, the fins 
must be removed in order to untangle the shark from the net. If not 
allowed to cut the fins and land the carcass without the fins, they 
will have to discard the animal after it has been untangled, or be in 
violation of the law. These commenters requested that they be able to 
discard the fins at sea and land the carcass without the fins. Some 
also requested an exemption for the California fleet that is similar to 
the one for dogfish where fins landed must be less than a given 
percentage of the total catch landed.
    Response to topic 1: The SCA does not provide an exemption for the 
shark fisheries off California. The only exemption provided under the 
statute pertains to individuals engaged in commercial fishing for 
smooth dogfish in certain areas of the Atlantic Ocean. See SCA section 
103(b). While NMFS recognizes the nature of the mako and thresher shark 
fisheries, we presently do not have the authority under the SCA or any 
other statute to allow fins from these sharks to be removed at sea. An 
exemption for these fisheries would require a statutory change.
    Topic 2: Many commenters mentioned their concern about the 
depletion of shark species and the important role of sharks in ocean 
ecology. These commenters expressed support for shark protection and 
swift enactment of this rule. Additional comments (over 80) contained 
similar statements and asked for NMFS to implement the SCA.
    Response to topic 2: The SCA and all of its requirements have been 
in effect since January 4, 2011. NMFS notes that this rule updates 
existing shark finning regulations at 50 CFR part 600, subpart N, with 
regulations containing language that is consistent with the text of the 
SCA. As explained above, the international provisions of the SCA were 
implemented through a final rule published on January 16, 2013 (78 FR 
3338), and the smooth dogfish exemption provisions of the SCA were 
implemented through a final rule published on November 24, 2015 (80 FR 
73128). With the publication of this final rule, all provisions of the 
SCA have been incorporated into agency regulations.
    Topic 3: A large number of comments from states, non-governmental 
organizations, and the public expressed concern about the preemption 
language in the preamble and regulatory text of the proposed rule, and 
asked NMFS to remove the preemption language from the preamble and 
regulatory text of the final rule. Many commenters asked

[[Page 42287]]

NMFS not to preempt state laws through the regulations or suggested 
that NMFS was attempting to preempt state laws through the regulations. 
Commenters expressed that states should have the ability to regulate 
the sale of shark fins within their jurisdictions, and are well within 
their rights to do so. Some commenters also stated that NMFS took an 
improper approach to coordinating with states that have shark fin 
legislation. For example, many commenters felt it was improper to 
include preemption language in the proposed rule before understanding 
the impacts of that language, indicating which specific state laws 
would be preempted, or discussing the proposed rule with potentially 
affected states. In addition, we received a number of comments that 
were specific to individual state laws from state legislators, 
attorneys general, and governors asserting why their state laws did not 
conflict with the SCA.
    Response to topic 3: As explained above in Section III, and in 
light of Executive Order (E.O.) 13132, which calls on Federal agencies 
to consult with potentially affected state and local governments prior 
to promulgating a final rule with federalism implications, NMFS engaged 
in extensive discussions with states and territories that have enacted 
shark fin laws, and is currently in discussions with one other 
territory that has passed a shark fin law, American Samoa. Based on 
those discussions, and information provided to NMFS by the states and 
territories, NMFS and the states and territories identified in Section 
III have reached agreement that the laws in those states and 
territories are not preempted by the MSA as amended by the SCA. 
Comments on the proposed rule from state legislators, attorneys 
general, and governors regarding their individual state laws are not 
summarized here, but were addressed through the discussions with 
individual states and territories. NMFS has addressed concerns raised 
in those comments regarding potential preemption of individual state 
laws through exchanges of letters with the individual states and 
territories that document that the laws are not in conflict with or 
preempted by the MSA as amended by the SCA, for the reasons described 
in Section III above. The extent to which any state shark fin law 
conflicts with and might be preempted by the MSA as amended by the SCA 
is a fact-specific determination to be made on a case-by-case basis.
    As explained above, proposed Sec.  600.1201(d) did not state that 
any state law was in fact preempted, and other sections of this rule 
merely codify SCA text. Any preemption would stem from a conflict 
between the MSA, as amended by the SCA, and a state law. NMFS has 
decided to remove Sec.  600.1201(d), though, given public comment on 
and apparent confusion regarding the language.
    Topic 4: Many commenters stated that they believe state shark fin 
bans and the SCA can work together, and instead of preempting state 
laws, NMFS should find a way to collaborate with the individual states.
    Response to topic 4: NMFS and the states regularly work together on 
fisheries management issues, and will continue to do so in the future. 
As explained in Section III and the response to topic 3, NMFS engaged 
in extensive discussions with states and territories that have existing 
shark fin laws. NMFS and the states and territories identified in 
Section III have reached agreement that the current shark fin laws in 
those states or territories are consistent with, and therefore are not 
preempted by, the MSA as amended by the SCA. NMFS is currently in 
discussions with one other territory that has passed a shark fin law, 
American Samoa. NMFS encourages any state or territory considering 
shark fin legislation to reach out to NMFS to discuss such legislation, 
and NMFS will continue to take appropriate steps, including engaging 
with states as necessary, to support federally licensed and permitted 
shark harvesters.
    Topic 5: NMFS received multiple comments from seafood processors, 
seafood associations, Fishery Management Councils, seafood dealers, 
fishery partnerships, and an environmental organization that felt that 
those individuals and organizations working to seek total bans on shark 
fin trade and consumption at the state level are undermining U.S. 
efforts to be a leader in sustainably-managed shark fishing. Some of 
these commenters stated that the individual state shark fin bans need 
to cease, as they interfere with interstate commerce.
    Response to topic 5: Through this and other rulemakings referenced 
above, NMFS has incorporated all provisions of the SCA into agency 
regulations. As explained above, NMFS has engaged in discussions with 
states with shark fin laws and has concluded that they do not conflict 
with the MSA as amended by the SCA. The SCA supports U.S. efforts to be 
a leader in sustainably-managed shark fisheries. The issue of 
interstate commerce is beyond the scope of this rulemaking, because 
this rule is only updating agency regulations consistent with the SCA. 
Any potential interstate commerce issues would be caused by individual 
state laws, and therefore would not be properly addressed here.
    Topic 6: NMFS received multiple comments from seafood processors, 
seafood associations, dealers and fishery partnerships, Fishery 
Management Councils, and a scientist that expressed support for the 
opinion that state laws are preempted if they are inconsistent with the 
MSA as amended by the SCA, with some commenters asserting that this was 
an accurate representation of the Supremacy Clause. These commenters 
expressed support for preemption of state shark fin laws.
    Response to topic 6: As explained in Section III, the MSA 
authorizes Federal fisheries management in the U.S. exclusive economic 
zone. This rule itself does not preempt any state laws, and any 
potential preemption would be due to a conflict with the MSA as amended 
by the SCA. As explained above, NMFS has had discussions with certain 
states and territories with shark fin laws and has determined that none 
of the shark fin laws in those states and territories conflicts with or 
is preempted by the MSA as amended by the SCA.
    Topic 7: Multiple comments mentioned the savings clause in the 
Shark Conservation Act and the exemption for commercial fishermen 
engaged in commercial fishing for smooth dogfish. These commenters do 
not agree with having an exemption for smooth dogfish or a ratio set at 
12 percent. Only one commenter expressed support for use of the 
statutory fin-to-carcass ratio.
    Response to topic 7: The SCA explicitly provided for a smooth 
dogfish exemption. Eliminating that exemption would require a statutory 
change. NMFS addressed interpretation of the exemption in a separate 
rulemaking. The final rule for that action was published on November 
24, 2015 (80 FR 73128).
    Topic 8: Many commenters made general statements about shark 
fishing and shark conservation, including stating that sharks should 
not be fished, expressing concern about sharks, urging added 
conservation mechanisms for sharks, supporting bans on all shark 
fishing, or providing suggestions on how they believed NMFS could 
improve shark management.
    Response to topic 8: These comments are beyond the scope of this 
rulemaking, which only updates agency regulations consistent with the 
SCA and doesn't address management measures for specific shark 
fisheries. NMFS is a leader in the sustainable management of domestic 
shark fisheries and the global conservation of sharks. Sharks are among 
the ocean's top predators and

[[Page 42288]]

vital to the natural balance of marine ecosystems. They are also a 
valuable recreational species and food source. To help protect these 
important marine species, the United States has some of the strongest 
shark conservation and management measures in the world. NMFS manages 
the commercial and recreational shark fisheries in the Atlantic Ocean 
and Gulf of Mexico and works with U.S. regional fishery management 
councils to conserve and sustainably manage sharks in the Pacific 
Ocean.
    The U.S. manages shark fisheries using an adaptive process under 
the MSA based on sound science, effective and enforced management 
measures, and collaboration with diverse stakeholders, states, and 
federal partners. Sustainably managed shark fisheries provide 
opportunities for both commercial and recreational fishermen.
    NMFS also works with international organizations to establish 
global shark conservation and management measures. In addition to 
prohibiting shark finning in the United States, we continue to promote 
our fins-naturally-attached policy overseas.
    Topic 9: Many commenters interpreted the proposed rule as NMFS 
supporting the return of longliners to Hawaii and urged NMFS to 
prohibit such activity.
    Response to topic 9: These comments are beyond the scope of this 
rulemaking. This rule only updates agency regulations consistent with 
the SCA, and does not address the longline fishery in Hawaii.

V. Changes From Proposed Action

    NMFS made only two changes from the proposed rule. First, based on 
NMFS' discussions with states with shark fin laws and on public 
comments, NMFS has removed preemption language in the proposed rule 
from the regulatory text of the final rule. Specifically, NMFS removed 
proposed Sec.  600.1201(d), which stated that State and territorial 
statutes that address shark fins are preempted if they are inconsistent 
with the MSA as amended by the Shark Conservation Act of 2010, 
regulations under this part, and applicable federal fishery management 
plans and regulations.
    Second, NMFS revised Sec.  600.1201(b), which addresses the 
exception for individuals engaged in commercial fishing for smooth 
dogfish. Specifically, NMFS combined proposed paragraphs (b)(1) and (2) 
and replaced the proposed language for those paragraphs with a cross-
reference to the relevant paragraph in NMFS' regulations that 
interprets the smooth dogfish exception (Sec.  635.30(c)(5)), which was 
finalized on November 24, 2015 (80 FR 73128), after the proposed rule 
for this rulemaking was published. This change was made to ensure that 
NMFS' interpretation and application of the smooth dogfish exception is 
consistent across NMFS' regulations and to make it easy for the reader 
to find the applicable provisions. This is not a substantive change 
from the proposed rule, because the language codified in Sec.  
635.30(c)(5) is consistent with the language originally proposed for 
Sec.  600.1201(b)(1), and the definition of ``Atlantic States'' (Sec.  
635.2) applicable to Sec.  635.30(c)(5) is consistent with the 
definition of ``State'' originally proposed in Sec.  600.1201(b)(2).

VI. Classification

    Pursuant to section 305(d) of the MSA, NMFS has determined that 
this final rule is consistent with the Magnuson-Stevens Fishery 
Conservation and Management Act and other applicable law.

Executive Order 12866

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

Executive Order 13132

    As explained in Section III and the response to comments, several 
states and territories have enacted statutes that address shark fins. 
In light of E.O. 13132, and in the interest of working with them, NMFS 
engaged in discussions with states and territories that have existing 
shark fin laws, and NMFS and the states and territories identified in 
Section III have reached agreement that the current shark fin laws in 
those states and territories are consistent with, and therefore are not 
preempted by, the MSA as amended by the SCA.
    The final rule is necessary to update NMFS' regulations to be 
consistent with the SCA, and it does not preempt any state laws. Any 
federalism implications are triggered by the provisions of the MSA, as 
amended by the SCA. The extent to which any state shark fin law 
conflicts with and might be preempted by the MSA itself, as amended by 
the SCA, is a fact-specific determination to be made on a case-by-case 
basis. Thus, after considering the public comment on and apparent 
confusion regarding the language, NMFS has removed the preemption 
language from the final rule.
    Should the facts presented to NMFS regarding any existing state or 
territory shark fin law change significantly, NMFS may re-engage in 
discussions with the applicable state or territory. If any additional 
states or territories are considering enacting shark fin laws, NMFS 
encourages them to reach out to NMFS to discuss such legislation. NMFS 
will continue to take appropriate steps, including engaging with states 
as necessary, to support federally licensed and permitted shark 
harvesters.

Regulatory Flexibility Act

    Pursuant to section 604 of the Regulatory Flexibility Act (RFA), 
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in 
support of this action. The FRFA incorporates the Initial Regulatory 
Flexibility Analysis (IRFA) that was published with the proposed rule 
for this action, a summary of the significant issues raised by the 
public comments in response to the IRFA, NMFS' response to those 
comments, relevant analysis contained in the action and its 
Environmental Assessment (EA), and a summary of the analyses in this 
rule. Copies of the analyses, EA, and FRFA are available from NMFS (see 
ADDRESSES). A summary of the FRFA follows. A description of why this 
action was considered, its objectives, and the legal basis for this 
rule is contained in the preamble to the proposed rule and is not 
repeated here.
    The rule updates agency regulations consistent with provisions of 
the SCA and prohibits 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. This 
action amends existing regulations and makes them consistent with the 
SCA.
    No significant issues were raised by the public comments in 
response to the IRFA. The Chief Counsel for Advocacy of the Small 
Business Administration (SBA) did not provide any comments on the IRFA. 
NMFS received one comment on the proposed rule that suggested that the 
preemption language would impact the commenter's business. However, as 
explained in section III and the response to comment topic 3, any 
preemption would stem from a conflict between the MSA, as amended by 
the SCA, and a state law. In any event, NMFS has removed the preemption 
language from the final rule, and therefore, the commenter's concern 
has been addressed.
    The FRFA contains new economic information that was added to 
clarify

[[Page 42289]]

information about large mesh and small mesh drift gillnet gears in the 
Pacific. This new information did not change the finding of no 
significant economic impact on small entities. Also, Section 604(a)(4) 
of the RFA requires agencies to provide an estimate of the number of 
small entities to which the rule would apply. On June 24, 2014, the 
Small Business Administration (SBA) issued a final rule revising the 
small business size standards for several industries, effective July 
14, 2014 (79 FR 33647). The rule increased the size standard for 
Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $5.0 
to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. Id. 
at 37400. NMFS has reviewed the analyses prepared for this action in 
light of the new size standards. Under the former, lower size 
standards, all entities subject to this action were considered small 
entities, thus they would continue to be considered small entities 
under the new standards. NMFS does not believe that the new size 
standards affect analyses prepared for this action.
    No duplicative, overlapping, or conflicting Federal rules have been 
identified. This rule does 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 Shark Finning Prohibition Act. 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. NMFS rejected this alternative 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: June 21, 2016.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS amends 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:  5 U.S.C. 561 and 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) This subpart does not apply to an individual engaged in 
commercial fishing for smooth dogfish (Mustelus canis) when the 
conditions in Sec.  635.30(c)(5) have been met.
    (c) This subpart does not supersede state laws or regulations 
governing conservation and management of state shark fisheries in state 
waters.


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:
    (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. 2016-15413 Filed 6-28-16; 8:45 am]
 BILLING CODE 3510-22-P



                                                                 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations                                          42285

                                                *      *     *       *      *                           can be found in the preamble of the                    November 2015, for Amendment 9 to
                                                [FR Doc. 2016–15101 Filed 6–28–16; 8:45 am]             proposed rule published on May 2, 2013                 the 2006 Consolidated Atlantic Highly
                                                BILLING CODE 3510–22–P                                  (78 FR 25685). Copies are available from               Migratory Species Fishery Management
                                                                                                        NMFS (see ADDRESSES), or can be                        Plan (November 24, 2015; 80 FR 73128).
                                                                                                        viewed electronically at the Federal E-                That final rule, among other things,
                                                DEPARTMENT OF COMMERCE                                  Rulemaking portal for this action: http://             allows for the at-sea removal of smooth
                                                                                                        www.regulations.gov.                                   dogfish fins provided that fishing occurs
                                                National Oceanic and Atmospheric                                                                               within 50 nautical miles of shore along
                                                Administration                                          II. Major Components of the Final
                                                                                                                                                               the Atlantic Coast from Maine through
                                                                                                        Action
                                                                                                                                                               the east coast of Florida; smooth dogfish
                                                50 CFR Part 600                                            Retaining a shark fin while discarding              fin weight does not exceed 12 percent
                                                                                                        the shark carcass (shark finning) has                  of the carcass weight on board; smooth
                                                [Docket No. 111014628–6513–02]
                                                                                                        been prohibited in the United States                   dogfish make up at least 25 percent of
                                                RIN 0648–BB54                                           since the 2000 Shark Finning                           the total retained catch, by weight; and
                                                                                                        Prohibition Act. The 2010 SCA included                 the fisherman/vessel holds both federal
                                                Magnuson-Stevens Fishery                                provisions that amended the Magnuson-                  and state permits appropriate for the
                                                Conservation and Management Act                         Stevens Fishery Conservation and                       retention of smooth dogfish.
                                                Provisions; Implementation of the                       Management Act (MSA) to prohibit any                      This final rule also combines the
                                                Shark Conservation Act of 2010                          person from: (1) Removing any of the                   existing §§ 600.1203 and 600.1204 into
                                                AGENCY:  National Marine Fisheries                      fins of a shark (including the tail) at sea;           one section. The text throughout 50 CFR
                                                Service (NMFS), National Oceanic and                    (2) having custody, control, or                        part 600, subpart N, is amended to make
                                                Atmospheric Administration (NOAA),                      possession of a fin aboard a fishing                   it consistent with the provisions of the
                                                Commerce.                                               vessel unless it is naturally attached to              SCA.
                                                                                                        the corresponding carcass; (3)                            The MSA authorizes the Secretary to
                                                ACTION: Final rule.
                                                                                                        transferring a fin from one vessel to                  regulate fisheries seaward of the inner
                                                SUMMARY:   This final action updates                    another vessel at sea, or receiving a fin              boundary of the U.S. exclusive
                                                agency regulations consistent with                      in such transfer, unless the fin is                    economic zone (EEZ), which is defined
                                                provisions of the Shark Conservation                    naturally attached to the corresponding                as a line coterminous with the seaward
                                                Act of 2010 (SCA) and prohibits any                     carcass; or (4) landing a fin that is not              boundary of each U.S. coastal state. 16
                                                person from removing any of the fins of                 naturally attached to the corresponding                U.S.C. 1802(11). Thus, as noted in the
                                                a shark at sea, possessing shark fins on                carcass, or landing a shark carcass                    proposed rule, the SCA provisions
                                                board a fishing vessel unless they are                  without its fins naturally attached. For               apply to any person subject to the
                                                naturally attached to the corresponding                 the purpose of the SCA and these                       jurisdiction of the United States,
                                                carcass, transferring or receiving fins                 regulations, ‘‘naturally attached,’’ with              including persons on board U.S. and
                                                from one vessel to another at sea unless                respect to a shark fin, means to be                    foreign vessels, engaging in activities
                                                the fins are naturally attached to the                  attached to the corresponding shark                    prohibited under the statute with
                                                corresponding carcass, landing shark                    carcass through some portion of uncut                  respect to sharks harvested seaward of
                                                fins unless they are naturally attached to              skin.                                                  the inner boundary of the EEZ. See 78
                                                the corresponding carcass, or landing                      This action amends NMFS’                            FR 25685, 25686 (May 2, 2013). Federal
                                                                                                        regulations consistent with these                      regulations pertaining to the
                                                shark carcasses without their fins
                                                                                                        provisions of the SCA. Specifically, the               conservation and management of
                                                naturally attached. This action amends
                                                                                                        rule amends regulations at 50 CFR part                 specific shark fisheries are set forth in
                                                existing regulations and makes them
                                                                                                        600, subpart N, to prohibit the removal                parts 635, 648, and 660 of title 50 of the
                                                consistent with the SCA.
                                                                                                        of shark fins at sea, namely, the                      Code of Federal Regulations. For
                                                DATES: Effective July 29, 2016.                         possession, transfer and landing of                    Atlantic highly migratory species
                                                ADDRESSES: Copies of the                                shark fins that are not naturally attached             fisheries, as a condition of its Federal
                                                Environmental Assessment (EA)/                          to the corresponding carcass, and the                  permit, a vessel’s fishing, catch, and
                                                Regulatory Impact Review (RIR)/Final                    landing of shark carcasses without the                 gear are subject to federal requirements
                                                Regulatory Flexibility Analysis (FRFA)                  corresponding fins naturally attached.                 even when fishing in state waters. See
                                                prepared for this action can be obtained                In the preamble to the proposed rule,                  50 CFR 635.4(a)(10) (noting also that,
                                                from: Erin Wilkinson, National Marine                   NMFS noted that it interprets the                      when fishing within the waters of a state
                                                Fisheries Service, 1315 East-West                       prohibitions in subpart N as applying to               with more restrictive regulations,
                                                Highway, Room 13437, Silver Spring                      sharks, not skates and rays, and                       persons aboard the vessel must comply
                                                MD 20910. An electronic copy of the                     solicited public comment on whether                    with those requirements). This rule
                                                EA/RIR/FRFA document as well as                         clarification was needed in the                        amends 50 CFR part 600, subpart N, and
                                                copies of public comments received can                  regulatory text on this issue. See 78 FR               does not supersede or amend any other
                                                be viewed at the Federal e-rulemaking                   25685, 25686 (May 2, 2013). NMFS                       federal regulation or requirement related
                                                portal: http://www.regulations.gov/                     received only one public comment on                    to the conservation and management of
                                                (Docket ID: NOAA–NMFS–2012–0092).                       this point, which was supportive of this               sharks.
                                                FOR FURTHER INFORMATION CONTACT: Erin                   interpretation, and NMFS thus affirms                     The SCA also amended the High Seas
                                                Wilkinson by phone at 301–427–8561,                     in this final rule that the prohibitions do            Driftnet Fishing Moratorium Protection
                                                or by email: erin.wilkinson@noaa.gov or                 not apply to skates and rays.                          Act, which provides for identification
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                                                sca.rulemaking@noaa.gov.                                   This final rule also updates subpart N              and certification of nations to address
                                                SUPPLEMENTARY INFORMATION:                              to be consistent with section 103(b) of                illegal, unreported, or unregulated
                                                                                                        the SCA regarding an exception for                     fishing; bycatch of protected living
                                                I. Overview of the Shark Conservation                   individuals engaged in commercial                      marine resources; and, as amended by
                                                Act                                                     fishing for smooth dogfish.                            the SCA, shark catches. 16 U.S.C.
                                                   Background information and an                        Interpretation of that exception was                   1826h–1826k. With regard to sharks, the
                                                overview of the Shark Conservation Act                  addressed in a rule finalized in                       High Seas Driftnet Fishing Moratorium


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                                                42286            Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations

                                                Protection Act provides for                             the SCA: California, Delaware, Hawaii,                 of many of the sharks (mainly mako and
                                                identification of a nation if its fishing               Maryland, Massachusetts, New York,                     thresher sharks) they harvest, the fins
                                                vessels have been engaged during the                    Oregon, Washington, the                                must be removed in order to untangle
                                                preceding calendar year in fishing                      Commonwealth of the Northern Mariana                   the shark from the net. If not allowed to
                                                activities or practices in waters beyond                Islands, and Guam. The bases for these                 cut the fins and land the carcass without
                                                any national jurisdiction that target or                conclusions were that the shark fin laws               the fins, they will have to discard the
                                                incidentally catch sharks and the nation                in those states and territories would                  animal after it has been untangled, or be
                                                has not adopted a regulatory program                    have minimal impacts on federally                      in violation of the law. These
                                                for sharks that is comparable to the                    licensed and permitted shark harvesters,               commenters requested that they be able
                                                United States’, taking into account                     because the laws did not prohibit                      to discard the fins at sea and land the
                                                different conditions. 16 U.S.C.                         federally licensed and permitted                       carcass without the fins. Some also
                                                1826k(a)(2). NMFS published a final                     fishermen from landing a legally-caught                requested an exemption for the
                                                rule that amended the High Seas                         shark with fins naturally attached or                  California fleet that is similar to the one
                                                Driftnet Fishing Moratorium Protection                  selling the non-fin parts of the shark,                for dogfish where fins landed must be
                                                Act regulations, to make them                           and, based on the scale and nature of                  less than a given percentage of the total
                                                consistent with these provisions of the                 the shark fisheries in those states and                catch landed.
                                                SCA, on January 16, 2013 (78 FR 3338).                  territories, the laws would have                          Response to topic 1: The SCA does
                                                                                                        minimal impacts on federal fishermen.                  not provide an exemption for the shark
                                                III. Relationship of Regulations With                                                                          fisheries off California. The only
                                                                                                        Copies of letters exchanged between
                                                Current State Laws                                                                                             exemption provided under the statute
                                                                                                        NMFS and applicable states and
                                                   The MSA provides for Federal                         territories documenting those                          pertains to individuals engaged in
                                                management of fisheries in the U.S.                     conclusions may be found on the Office                 commercial fishing for smooth dogfish
                                                exclusive economic zone (16 U.S.C.                      of Sustainable Fisheries Web site: http://             in certain areas of the Atlantic Ocean.
                                                1812(a)). In § 600.1201(d) of the                       www.nmfs.noaa.gov/sfa/laws_policies/                   See SCA section 103(b). While NMFS
                                                proposed rule, NMFS noted that State                    sca/index.html. Copies of letters may                  recognizes the nature of the mako and
                                                and territorial statutes that address                   also be requested by contacting NMFS                   thresher shark fisheries, we presently do
                                                shark fins are preempted if they are                    (See ADDRESSES). Should the facts                      not have the authority under the SCA or
                                                inconsistent with the MSA as amended                    presented to NMFS change significantly,                any other statute to allow fins from
                                                by the Shark Conservation Act of 2010,                  NMFS may re-engage in discussions                      these sharks to be removed at sea. An
                                                regulations under this part, and                        with the applicable state or territory.                exemption for these fisheries would
                                                applicable federal fishery management                   NMFS is currently in discussions with                  require a statutory change.
                                                plans and regulations. This text did not                one other territory that passed a shark                   Topic 2: Many commenters
                                                state that specific state laws were in fact             fin law, American Samoa. NMFS                          mentioned their concern about the
                                                preempted, and the proposed                             encourages any state or territory                      depletion of shark species and the
                                                regulations themselves would not have                   considering shark fin legislation to                   important role of sharks in ocean
                                                preempted any state or territorial laws.                reach out to NMFS to discuss such                      ecology. These commenters expressed
                                                NMFS included this text because a                       legislation, and NMFS will continue to                 support for shark protection and swift
                                                number of states and territories had                    take appropriate steps, including                      enactment of this rule. Additional
                                                enacted their own laws regarding shark                  engaging with states as necessary, to                  comments (over 80) contained similar
                                                fins, and NMFS was concerned that                       support federally licensed and                         statements and asked for NMFS to
                                                some of those laws, which differ from                   permitted shark harvesters.                            implement the SCA.
                                                state to state, might restrict the                                                                                Response to topic 2: The SCA and all
                                                possession of shark fins in a way that                  IV. Response to Comments                               of its requirements have been in effect
                                                could conflict with the broader goals of                  NMFS received over 180,000 public                    since January 4, 2011. NMFS notes that
                                                the MSA as amended by the SCA, and                      comments on the proposed rule. These                   this rule updates existing shark finning
                                                might therefore be preempted by the                     comments came from non-governmental                    regulations at 50 CFR part 600, subpart
                                                MSA as amended by the SCA.                              organizations, members of Congress,                    N, with regulations containing language
                                                   NMFS engaged in extensive                            Fishery Management Councils and                        that is consistent with the text of the
                                                discussions with states and territories                 Commissions, state governments,                        SCA. As explained above, the
                                                that have existing shark fin laws. During               commercial and recreational fishermen,                 international provisions of the SCA
                                                these discussions, the states and                       and other interested members of the                    were implemented through a final rule
                                                territories all expressed concern over                  public. Many of the comment letters                    published on January 16, 2013 (78 FR
                                                language in the proposed rule regarding                 were similar or raised similar issues.                 3338), and the smooth dogfish
                                                the potential for preemption of state                   NMFS reviewed and considered all                       exemption provisions of the SCA were
                                                shark fin laws that conflict with the                   comments during the development of                     implemented through a final rule
                                                SCA. In those discussions, NMFS                         this final rule. Due to the large volume               published on November 24, 2015 (80 FR
                                                sought additional information about the                 of comments received and the                           73128). With the publication of this
                                                nature and details of the state laws and                overlapping nature of many of the                      final rule, all provisions of the SCA
                                                fisheries, economic factors, and the                    comments, we have not responded to                     have been incorporated into agency
                                                ability of federally-permitted shark                    each individually, but instead have                    regulations.
                                                fishermen to dispose of legally-landed                  responded to the major topics addressed                   Topic 3: A large number of comments
                                                shark fins. Following the discussions                   in the comments. Many comments                         from states, non-governmental
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                                                described above and further exchanges                   expressed support for the rule as written              organizations, and the public expressed
                                                of information between NMFS and the                     and have not been summarized below.                    concern about the preemption language
                                                relevant states and territories, NMFS has                 Topic 1: Several fishermen from                      in the preamble and regulatory text of
                                                determined that the current shark fin                   California commented that they support                 the proposed rule, and asked NMFS to
                                                laws for these states and territories are               the SCA, but that the proposed rule                    remove the preemption language from
                                                consistent with, and therefore are not                  ignored the details of their shark fishery.            the preamble and regulatory text of the
                                                preempted by, the MSA as amended by                     They indicated that due to the large size              final rule. Many commenters asked


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                                                                 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations                                          42287

                                                NMFS not to preempt state laws through                  text. Any preemption would stem from                   individual state laws, and therefore
                                                the regulations or suggested that NMFS                  a conflict between the MSA, as                         would not be properly addressed here.
                                                was attempting to preempt state laws                    amended by the SCA, and a state law.                      Topic 6: NMFS received multiple
                                                through the regulations. Commenters                     NMFS has decided to remove                             comments from seafood processors,
                                                expressed that states should have the                   § 600.1201(d), though, given public                    seafood associations, dealers and fishery
                                                ability to regulate the sale of shark fins              comment on and apparent confusion                      partnerships, Fishery Management
                                                within their jurisdictions, and are well                regarding the language.                                Councils, and a scientist that expressed
                                                within their rights to do so. Some                         Topic 4: Many commenters stated that                support for the opinion that state laws
                                                commenters also stated that NMFS took                   they believe state shark fin bans and the              are preempted if they are inconsistent
                                                an improper approach to coordinating                    SCA can work together, and instead of                  with the MSA as amended by the SCA,
                                                with states that have shark fin                         preempting state laws, NMFS should                     with some commenters asserting that
                                                legislation. For example, many                          find a way to collaborate with the                     this was an accurate representation of
                                                commenters felt it was improper to                      individual states.                                     the Supremacy Clause. These
                                                include preemption language in the                         Response to topic 4: NMFS and the                   commenters expressed support for
                                                proposed rule before understanding the                  states regularly work together on                      preemption of state shark fin laws.
                                                impacts of that language, indicating                    fisheries management issues, and will                     Response to topic 6: As explained in
                                                which specific state laws would be                      continue to do so in the future. As                    Section III, the MSA authorizes Federal
                                                preempted, or discussing the proposed                   explained in Section III and the                       fisheries management in the U.S.
                                                rule with potentially affected states. In               response to topic 3, NMFS engaged in                   exclusive economic zone. This rule
                                                addition, we received a number of                       extensive discussions with states and                  itself does not preempt any state laws,
                                                comments that were specific to                          territories that have existing shark fin               and any potential preemption would be
                                                individual state laws from state                        laws. NMFS and the states and                          due to a conflict with the MSA as
                                                legislators, attorneys general, and                     territories identified in Section III have             amended by the SCA. As explained
                                                governors asserting why their state laws                reached agreement that the current                     above, NMFS has had discussions with
                                                did not conflict with the SCA.                          shark fin laws in those states or                      certain states and territories with shark
                                                   Response to topic 3: As explained                    territories are consistent with, and                   fin laws and has determined that none
                                                above in Section III, and in light of                   therefore are not preempted by, the                    of the shark fin laws in those states and
                                                Executive Order (E.O.) 13132, which                     MSA as amended by the SCA. NMFS is                     territories conflicts with or is preempted
                                                calls on Federal agencies to consult with               currently in discussions with one other                by the MSA as amended by the SCA.
                                                potentially affected state and local                    territory that has passed a shark fin law,                Topic 7: Multiple comments
                                                governments prior to promulgating a                     American Samoa. NMFS encourages any                    mentioned the savings clause in the
                                                final rule with federalism implications,                state or territory considering shark fin               Shark Conservation Act and the
                                                NMFS engaged in extensive discussions                   legislation to reach out to NMFS to                    exemption for commercial fishermen
                                                with states and territories that have                   discuss such legislation, and NMFS will                engaged in commercial fishing for
                                                enacted shark fin laws, and is currently                continue to take appropriate steps,                    smooth dogfish. These commenters do
                                                in discussions with one other territory                 including engaging with states as                      not agree with having an exemption for
                                                that has passed a shark fin law,                        necessary, to support federally licensed               smooth dogfish or a ratio set at 12
                                                American Samoa. Based on those                          and permitted shark harvesters.                        percent. Only one commenter expressed
                                                discussions, and information provided                      Topic 5: NMFS received multiple                     support for use of the statutory fin-to-
                                                to NMFS by the states and territories,                  comments from seafood processors,                      carcass ratio.
                                                NMFS and the states and territories                     seafood associations, Fishery                             Response to topic 7: The SCA
                                                identified in Section III have reached                  Management Councils, seafood dealers,                  explicitly provided for a smooth dogfish
                                                agreement that the laws in those states                 fishery partnerships, and an                           exemption. Eliminating that exemption
                                                and territories are not preempted by the                environmental organization that felt that              would require a statutory change. NMFS
                                                MSA as amended by the SCA.                              those individuals and organizations                    addressed interpretation of the
                                                Comments on the proposed rule from                      working to seek total bans on shark fin                exemption in a separate rulemaking.
                                                state legislators, attorneys general, and               trade and consumption at the state level               The final rule for that action was
                                                governors regarding their individual                    are undermining U.S. efforts to be a                   published on November 24, 2015 (80 FR
                                                state laws are not summarized here, but                 leader in sustainably-managed shark                    73128).
                                                were addressed through the discussions                  fishing. Some of these commenters                         Topic 8: Many commenters made
                                                with individual states and territories.                 stated that the individual state shark fin             general statements about shark fishing
                                                NMFS has addressed concerns raised in                   bans need to cease, as they interfere                  and shark conservation, including
                                                those comments regarding potential                      with interstate commerce.                              stating that sharks should not be fished,
                                                preemption of individual state laws                        Response to topic 5: Through this and               expressing concern about sharks, urging
                                                through exchanges of letters with the                   other rulemakings referenced above,                    added conservation mechanisms for
                                                individual states and territories that                  NMFS has incorporated all provisions of                sharks, supporting bans on all shark
                                                document that the laws are not in                       the SCA into agency regulations. As                    fishing, or providing suggestions on
                                                conflict with or preempted by the MSA                   explained above, NMFS has engaged in                   how they believed NMFS could improve
                                                as amended by the SCA, for the reasons                  discussions with states with shark fin                 shark management.
                                                described in Section III above. The                     laws and has concluded that they do not                   Response to topic 8: These comments
                                                extent to which any state shark fin law                 conflict with the MSA as amended by                    are beyond the scope of this rulemaking,
                                                conflicts with and might be preempted                   the SCA. The SCA supports U.S. efforts                 which only updates agency regulations
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                                                by the MSA as amended by the SCA is                     to be a leader in sustainably-managed                  consistent with the SCA and doesn’t
                                                a fact-specific determination to be made                shark fisheries. The issue of interstate               address management measures for
                                                on a case-by-case basis.                                commerce is beyond the scope of this                   specific shark fisheries. NMFS is a
                                                   As explained above, proposed                         rulemaking, because this rule is only                  leader in the sustainable management of
                                                § 600.1201(d) did not state that any state              updating agency regulations consistent                 domestic shark fisheries and the global
                                                law was in fact preempted, and other                    with the SCA. Any potential interstate                 conservation of sharks. Sharks are
                                                sections of this rule merely codify SCA                 commerce issues would be caused by                     among the ocean’s top predators and


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                                                42288            Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations

                                                vital to the natural balance of marine                  (§ 635.30(c)(5)), which was finalized on               considering enacting shark fin laws,
                                                ecosystems. They are also a valuable                    November 24, 2015 (80 FR 73128), after                 NMFS encourages them to reach out to
                                                recreational species and food source. To                the proposed rule for this rulemaking                  NMFS to discuss such legislation.
                                                help protect these important marine                     was published. This change was made                    NMFS will continue to take appropriate
                                                species, the United States has some of                  to ensure that NMFS’ interpretation and                steps, including engaging with states as
                                                the strongest shark conservation and                    application of the smooth dogfish                      necessary, to support federally licensed
                                                management measures in the world.                       exception is consistent across NMFS’                   and permitted shark harvesters.
                                                NMFS manages the commercial and                         regulations and to make it easy for the
                                                                                                                                                               Regulatory Flexibility Act
                                                recreational shark fisheries in the                     reader to find the applicable provisions.
                                                Atlantic Ocean and Gulf of Mexico and                   This is not a substantive change from                     Pursuant to section 604 of the
                                                works with U.S. regional fishery                        the proposed rule, because the language                Regulatory Flexibility Act (RFA), NMFS
                                                management councils to conserve and                     codified in § 635.30(c)(5) is consistent               has prepared a Final Regulatory
                                                sustainably manage sharks in the Pacific                with the language originally proposed                  Flexibility Analysis (FRFA) in support
                                                Ocean.                                                  for § 600.1201(b)(1), and the definition               of this action. The FRFA incorporates
                                                   The U.S. manages shark fisheries                     of ‘‘Atlantic States’’ (§ 635.2) applicable            the Initial Regulatory Flexibility
                                                using an adaptive process under the                     to § 635.30(c)(5) is consistent with the               Analysis (IRFA) that was published
                                                MSA based on sound science, effective                   definition of ‘‘State’’ originally proposed            with the proposed rule for this action,
                                                and enforced management measures,                       in § 600.1201(b)(2).                                   a summary of the significant issues
                                                and collaboration with diverse                                                                                 raised by the public comments in
                                                stakeholders, states, and federal                       VI. Classification                                     response to the IRFA, NMFS’ response
                                                partners. Sustainably managed shark                        Pursuant to section 305(d) of the                   to those comments, relevant analysis
                                                fisheries provide opportunities for both                MSA, NMFS has determined that this                     contained in the action and its
                                                commercial and recreational fishermen.                  final rule is consistent with the                      Environmental Assessment (EA), and a
                                                   NMFS also works with international                   Magnuson-Stevens Fishery                               summary of the analyses in this rule.
                                                organizations to establish global shark                 Conservation and Management Act and                    Copies of the analyses, EA, and FRFA
                                                conservation and management                             other applicable law.                                  are available from NMFS (see
                                                measures. In addition to prohibiting                                                                           ADDRESSES). A summary of the FRFA
                                                shark finning in the United States, we                  Executive Order 12866                                  follows. A description of why this
                                                continue to promote our fins-naturally-                   This final rule has been determined to               action was considered, its objectives,
                                                attached policy overseas.                               be not significant for purposes of                     and the legal basis for this rule is
                                                   Topic 9: Many commenters                             Executive Order 12866.                                 contained in the preamble to the
                                                interpreted the proposed rule as NMFS                                                                          proposed rule and is not repeated here.
                                                                                                        Executive Order 13132                                     The rule updates agency regulations
                                                supporting the return of longliners to
                                                Hawaii and urged NMFS to prohibit                          As explained in Section III and the                 consistent with provisions of the SCA
                                                such activity.                                          response to comments, several states                   and prohibits any person from removing
                                                   Response to topic 9: These comments                  and territories have enacted statutes that             any of the fins of a shark at sea,
                                                are beyond the scope of this rulemaking.                address shark fins. In light of E.O.                   possessing shark fins on board a fishing
                                                This rule only updates agency                           13132, and in the interest of working                  vessel unless they are naturally attached
                                                regulations consistent with the SCA,                    with them, NMFS engaged in                             to the corresponding carcass,
                                                and does not address the longline                       discussions with states and territories                transferring or receiving fins from one
                                                fishery in Hawaii.                                      that have existing shark fin laws, and                 vessel to another at sea unless the fins
                                                                                                        NMFS and the states and territories                    are naturally attached to the
                                                V. Changes From Proposed Action                         identified in Section III have reached                 corresponding carcass, landing shark
                                                   NMFS made only two changes from                      agreement that the current shark fin                   fins unless they are naturally attached to
                                                the proposed rule. First, based on                      laws in those states and territories are               the corresponding carcass, or landing
                                                NMFS’ discussions with states with                      consistent with, and therefore are not                 shark carcasses without their fins
                                                shark fin laws and on public comments,                  preempted by, the MSA as amended by                    naturally attached. This action amends
                                                NMFS has removed preemption                             the SCA.                                               existing regulations and makes them
                                                language in the proposed rule from the                     The final rule is necessary to update               consistent with the SCA.
                                                regulatory text of the final rule.                      NMFS’ regulations to be consistent with                   No significant issues were raised by
                                                Specifically, NMFS removed proposed                     the SCA, and it does not preempt any                   the public comments in response to the
                                                § 600.1201(d), which stated that State                  state laws. Any federalism implications                IRFA. The Chief Counsel for Advocacy
                                                and territorial statutes that address                   are triggered by the provisions of the                 of the Small Business Administration
                                                shark fins are preempted if they are                    MSA, as amended by the SCA. The                        (SBA) did not provide any comments on
                                                inconsistent with the MSA as amended                    extent to which any state shark fin law                the IRFA. NMFS received one comment
                                                by the Shark Conservation Act of 2010,                  conflicts with and might be preempted                  on the proposed rule that suggested that
                                                regulations under this part, and                        by the MSA itself, as amended by the                   the preemption language would impact
                                                applicable federal fishery management                   SCA, is a fact-specific determination to               the commenter’s business. However, as
                                                plans and regulations.                                  be made on a case-by-case basis. Thus,                 explained in section III and the response
                                                   Second, NMFS revised § 600.1201(b),                  after considering the public comment on                to comment topic 3, any preemption
                                                which addresses the exception for                       and apparent confusion regarding the                   would stem from a conflict between the
                                                individuals engaged in commercial                       language, NMFS has removed the                         MSA, as amended by the SCA, and a
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                                                fishing for smooth dogfish. Specifically,               preemption language from the final rule.               state law. In any event, NMFS has
                                                NMFS combined proposed paragraphs                          Should the facts presented to NMFS                  removed the preemption language from
                                                (b)(1) and (2) and replaced the proposed                regarding any existing state or territory              the final rule, and therefore, the
                                                language for those paragraphs with a                    shark fin law change significantly,                    commenter’s concern has been
                                                cross-reference to the relevant paragraph               NMFS may re-engage in discussions                      addressed.
                                                in NMFS’ regulations that interprets the                with the applicable state or territory. If                The FRFA contains new economic
                                                smooth dogfish exception                                any additional states or territories are               information that was added to clarify


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                                                                 Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations                                                42289

                                                information about large mesh and small                    Dated: June 21, 2016.                                berth, beach, seawall, or ramp to begin
                                                mesh drift gillnet gears in the Pacific.                Samuel D. Rauch III,                                   offloading fish.
                                                This new information did not change                     Deputy Assistant Administrator for                       Naturally attached, with respect to a
                                                the finding of no significant economic                  Regulatory Programs, National Marine                   shark fin, means attached to the
                                                impact on small entities. Also, Section                 Fisheries Service.
                                                                                                                                                               corresponding shark carcass through
                                                604(a)(4) of the RFA requires agencies to                 For the reasons set out in the
                                                                                                                                                               some portion of uncut skin.
                                                provide an estimate of the number of                    preamble, NMFS amends 50 CFR part
                                                small entities to which the rule would                  600 as follows:                                          (b) If there is any difference between
                                                apply. On June 24, 2014, the Small                                                                             a definition in this section and in
                                                                                                        PART 600—MAGNUSON-STEVENS                              § 600.10, the definition in this section is
                                                Business Administration (SBA) issued a
                                                                                                        ACT PROVISIONS                                         the operative definition for the purposes
                                                final rule revising the small business
                                                size standards for several industries,                                                                         of this subpart.
                                                                                                        ■ 1. The authority citation for part 600
                                                effective July 14, 2014 (79 FR 33647).                  continues to read as follows:                          § 600.1203   Prohibitions.
                                                The rule increased the size standard for
                                                                                                          Authority: 5 U.S.C. 561 and 16 U.S.C.                   (a) It is unlawful for any person to do,
                                                Finfish Fishing from $19.0 to 20.5                      1801 et seq.
                                                million, Shellfish Fishing from $5.0 to                                                                        or attempt to do, any of the following:
                                                5.5 million, and Other Marine Fishing                   ■ 2. Subpart N is revised to read as                      (1) Remove a fin at sea.
                                                from $7.0 to 7.5 million. Id. at 37400.                 follows:
                                                                                                                                                                  (2) To have custody, control, or
                                                NMFS has reviewed the analyses
                                                                                                        Subpart N—Shark Fin Removal,                           possession of a fin, aboard a fishing
                                                prepared for this action in light of the
                                                                                                        Possession, Transfer and Landing                       vessel, unless the fin is naturally
                                                new size standards. Under the former,
                                                                                                        Sec.                                                   attached.
                                                lower size standards, all entities subject
                                                to this action were considered small                    600.1200 Purpose and scope.                               (3) Transfer a fin from one vessel to
                                                                                                        600.1201 Relation to other laws.                       another vessel at sea unless the fin is
                                                entities, thus they would continue to be                600.1202 Definitions.
                                                considered small entities under the new                 600.1203 Prohibitions.
                                                                                                                                                               naturally attached.
                                                standards. NMFS does not believe that                                                                             (4) Receive a fin in a transfer from one
                                                the new size standards affect analyses                  Subpart N—Shark Fin Removal,                           vessel to another vessel at sea unless the
                                                prepared for this action.                               Possession, Transfer and Landing                       fin is naturally attached.
                                                   No duplicative, overlapping, or                                                                                (5) Land a fin unless the fin is
                                                conflicting Federal rules have been                     § 600.1200    Purpose and scope.
                                                                                                                                                               naturally attached.
                                                identified. This rule does not establish                  The regulations in this subpart
                                                                                                        implement the Shark Conservation Act                      (6) Land a shark carcass without all of
                                                any new reporting or record-keeping
                                                                                                        of 2010.                                               its fins naturally attached.
                                                requirements.
                                                                                                                                                                  (7) Possess, purchase, offer to sell, or
                                                   One alternative, the status quo, was                 § 600.1201    Relation to other laws.
                                                                                                                                                               sell fins or shark carcasses taken,
                                                considered for the proposed action. This                   (a) Regulations pertaining to                       transferred, landed, or possessed in
                                                alternative would maintain the current                  conservation and management
                                                regulations under the Shark Finning                                                                            violation of this section.
                                                                                                        (including record keeping and
                                                Prohibition Act. Under this alternative,                reporting) for certain shark fisheries are                (8) When requested, fail to allow an
                                                any person may remove and retain on                     also set forth in parts 635 (for Federal               authorized officer or any employee of
                                                the vessel fins (including the tail) from               Atlantic Ocean, Gulf of Mexico, and                    NMFS designated by a Regional
                                                a shark harvested seaward of the inner                  Caribbean shark fisheries), 648 (for                   Administrator, or by the Director of the
                                                boundary of the U.S. EEZ; however, the                  spiny dogfish fisheries), 660 (for                     Office of Sustainable Fisheries in the
                                                corresponding carcass must also be                      fisheries off West Coast states), and 665              case of the Atlantic Highly Migratory
                                                retained on board the vessel. It would be               (for fisheries in the western Pacific) of              Species, access to or inspection or
                                                a rebuttable presumption that shark fins                this chapter.                                          copying of any records pertaining to the
                                                landed by a U.S. or foreign fishing                        (b) This subpart does not apply to an               landing, sale, transfer, purchase, or
                                                vessel were taken, held, or landed in                   individual engaged in commercial                       other disposition of fins or shark
                                                violation of the regulations if the total               fishing for smooth dogfish (Mustelus                   carcasses.
                                                weight of the shark fins landed exceeds                 canis) when the conditions in
                                                                                                                                                                  (b) For purposes of this section, it is
                                                5 percent of the total dressed weight of                § 635.30(c)(5) have been met.
                                                                                                                                                               a rebuttable presumption that:
                                                shark carcasses on board or landed from                    (c) This subpart does not supersede
                                                the fishing vessel. NMFS rejected this                  state laws or regulations governing                       (1) If a fin is found aboard a vessel,
                                                alternative because it would not comply                 conservation and management of state                   other than a fishing vessel, without
                                                with the requirements of the SCA. No                    shark fisheries in state waters.                       being naturally attached, such fin was
                                                other alternatives meet the statutory                                                                          transferred in violation of this section.
                                                                                                        § 600.1202    Definitions.
                                                requirements, and so none were                                                                                    (2) If, after landing, the total weight of
                                                                                                           (a) In addition to the definitions in the
                                                considered.                                                                                                    fins landed from any vessel exceeds five
                                                                                                        Magnuson-Stevens Act and in § 600.10,
                                                                                                        the terms used in this subpart have the                percent of the total weight of shark
                                                List of Subjects in 50 CFR Part 600
                                                                                                        following meanings:                                    carcasses landed, such fins were taken,
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                                                  Administrative practice and                              Fin means any of the fins of a shark                held, or landed in violation of this
                                                procedure, Confidential business                        (including the tail) or a portion thereof.             section.
                                                information, Fisheries, Fishing, Fishing                   Land or landing means offloading                    [FR Doc. 2016–15413 Filed 6–28–16; 8:45 am]
                                                vessels, Foreign relations,                             fish, or causing fish to be offloaded,                 BILLING CODE 3510–22–P
                                                Intergovernmental relations, Penalties,                 from a fishing vessel, either to another
                                                Reporting and recordkeeping                             vessel or to a shore side location or
                                                requirements, Statistics.                               facility, or arriving in port, or at a dock,


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Document Created: 2018-02-08 07:43:02
Document Modified: 2018-02-08 07:43:02
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective July 29, 2016.
ContactErin Wilkinson by phone at 301-427- 8561, or by email: [email protected] or [email protected]
FR Citation81 FR 42285 
RIN Number0648-BB54
CFR AssociatedAdministrative Practice and Procedure; Confidential Business Information; Fisheries; Fishing; Fishing Vessels; Foreign Relations; Intergovernmental Relations; Penalties; Reporting and Recordkeeping Requirements and Statistics

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